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Leo Huisman v The University of Highlands and Islands and The Scottish Ministers
Petition of Leo Bruce Huisman for Judicial review of a decision as to student fee status by the University of the Highlands and Islands
P196/24
Wednesday 4 March 2026
10:30 to 13:00 then 14:00 until conclusion
First Division
Overview
[1] This reclaiming motion (appeal) concerns the rate of fees payable to the University of the Highlands and Islands (respondent) by the reclaimer (appellant). The appellant was born and raised in South Africa before coming to the United Kingdom in February 2021. His mother was born in Scotland. She then moved to South Africa where she was a journalist. In 2021 she returned to the UK with the appellant as a result of political persecution in South Africa. The appellant has South African citizenship by birth and UK citizenship by virtue of his mother.
[2] The appellant applied to, and received an unconditional offer for, a BSc Optometry Course with the respondent in July 2021. The fees that may be charged by educational institutions are regulated. The relevant regulations for the present action are the Education (Fees) (Scotland) Regulations 2011 (now superseded by the 2022 regulations).
[3] The 2011 Regulations stipulate that it is lawful to charge a higher rate to students who do not have a “relevant connection” with Scotland, but that it is not lawful to charge a higher rate of fees to “excepted students” as defined by the regulations. It is agreed that the appellant does not have a relevant connection with Scotland as defined by the regulations. It is also agreed that the appellant does not fall within any of the categories of excepted students in the 2011 Regulations.
[4] The appellant argues that whilst he did not fit within the designated “excepted student” categories provided for by the 2011 Regulations, his situation was sufficiently analogous to the excepted categories. The respondent applied the 2011 Regulations in a way that resulted in the appellant being treated differently to others in analogous circumstances. The appellant argues that this is discriminatory and infringes Article 14 of the ECHR.
The Lord Ordinary
[5] One common feature of the excepted student categories was that they had fled their country of residence for humanitarian reasons, but another was that excepted students did not have an automatic right to reside in Scotland/ United Kingdom. This was a material consideration when considering the allocation of resources to provide grants to students.
[6] The Scottish Government made a deliberate choice as to who would be a beneficiary of funding for further education. A distinction was drawn between persons with ordinary residence in Scotland and those whose ordinary residence was in the remainder of the United Kingdom. The appellant had more in common with the students from the rest of the United Kingdom than foreign nationals in this respect. He was in a position to qualify for Scottish funding if he chose as he had an unconditional right to reside in Scotland. As that was the basis on which the Scottish Government determined the funding should be allocated, it could not be said that the appellant was in the same category as foreign nationals who have no right to enter into the United Kingdom save for falling into one of the excepted categories.
[7] The Lord Ordinary did not consider that the appellant had demonstrated that there was a breach of Article 14. However, he considered that reading the 2011 Regulations as “analogous to” the designated categories of excepted student would have the consequence of altering the class of people to whom government resources are directed. Therefore, the appellant’s suggested reading of the regulations was not workable.
The Appeal
[8] The appellant contends that he is analogous to an excepted student on humanitarian grounds. He required to leave his ordinary place of residence for humanitarian reasons and through no fault of his own. The appellant also argues that there was not sufficient justification for treating him as analogous to other UK resident students. As a consequence of these errors, the appellant argues that there was unjustified discrimination produced by the 2011 Regulations, which has resulted in a breach of his Article 14 rights. The appellant submits to the court that the 2011 Regulations are capable of being read in a manner that did not result in any such discrimination.
[9] The respondent contends that the Lord Ordinary was correct in his finding that the appellant’s situation was more analogous to a UK resident than a foreign national. The respondent also contends that a breach of Article 14 was not made out as there was an objective justification for the difference in treatment between the appellant and other excepted students. They also consider that there was no unjustified discrimination as the Scottish Ministers were entitled to exercise a broad margin of appreciation in matters relating to spending choices. Their position is that there is no incompatibility with the appellant’s convention rights.
[10] The Scottish Ministers have entered process as an interested party. Their position is that the appellant did not plead a relevant case challenging the 2011 Regulations. The Scottish Ministers acknowledge that the appellant is a British citizen, and to this extent he was in the same position as a UK resident wishing to study at a Scottish university. The Scottish Ministers note that the 2011 Regulations represent a policy decision to which the Scottish Ministers exercise a broad discretion. The difference in treatment was to protect opportunities for Scotland-connected students. This is a legitimate aim, which justifies the difference in treatment in the 2011 Regulations. The interested party contends that the appellant seeks the court to declare him entitled to a treatment that the 2011 Regulations do not afford him. The reading of the 2011 Regulations that is proposed by the appellant is not possible. There is nothing discriminatory or arbitrary about the requirement to be ordinarily resident in Scotland in order to qualify for Scottish university fees.
The First Division will hear this appeal on Wednesday 4 March 2026 at 10.30am.